Shantidevi v. South Delhi Municipal Corporation

1. Exempition allowed,subjectto alljust exceptions.

2. The application stands disposed of. C.M.No.4905/2020 & C.M.No.4925/2020

3. By these applications, the Appellant seeks condonation of delay in filing the appeal by 47 days and delay in re-filing the appeal by an additional 19 days. For the reasons stated in the applications,they are allowed. The delay in filing and re-filing the applicationsis condoned. LPA 72/2020 & C.M.Nos.4903-4904/2020

4. The Appellant has assailed the judgment rendered by the learned Single Judge in W.P.(C) 8083/2008 dated 30.09.2019. The Appellant was the Respondent in the said writ petition preferred by the MCD to assail the LPA 72/2020 Page[1] of[5] 2020:DHC:3919-DB award dated 11.02.2005 passed by the Labour Court. The Labour Court directed reinstatement of the Appellant with 25 percent back wages and continuity ofservice.

5. It appears that the Appellant was engaged by the Respondent-MCD as Mahila Beldar on daily wages on 14.07.1997 and was disengaged on 06.01.1998. Thus,it would be seen that she had not worked for a year with the Respondent, much less a period of240 days in a year. The Appellant jjt raised an industrial dispute before the Labour Court. She claimed that her termination was in violation ofSections 25F,25G and 25H ofthe Industrial Disputes Act. As aforesaid, the Labour Court passed an award in her favour. The learned Single Judge has set aside the award byfinding thatthe Appellant having not worked for a year. Section 25F,25G and 25H could notbe invoked by her. We have heard learned counselforthe Appellant and perused the impugned order. We have also examined the relevant Sections of the Industrial Disputes Act. Section 25F of the Industrial disputes Act begins with the words ''no workmen employed in any industry who has been continuous service for not less than one year under an employer shallbe retrenched by thatemployer until..."{EmphasisSupplied], V

6. Thus, it would be seen that for invocation of Section 25H i.e. for retrenchment of a workman in terms of Section 25F of the Industrial Disputes Act, the pre- requisite is that the workman should have been employed in the industry and should have been in continuous service for not less than one year under the employer. Admittedly,the Appellant was notin employment ofthe Respondent-MCD for a period ofone year, since,she LPA 72/2020 Page2of[5] was engaged on daily wages on 14.07.1997 and continued to serve in that capacity till 06.01.1998. Itfollows that Section 25F was not attracted in the case of the Appellant and her termination could not be described as retrenchment in terms of Section 25F. The submission oflearned counsel for the Appellant is that even if Section 25F is not attracted to the termination of the Appellant's service, Sections 25G and 25H were attracted. Thesetwo provisions read as follows: "Section 25G -Procedurefor retrenchment Where any workman in an industrial establishment, who is a citizen ofIndia, is to he retrenched and he belongs to aparticular category ofworkmen in that establishment, in the absence ofany agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the lastperson to be employed in that category, unlessfor reasons to be recordedthe employer retrenches any other workman. Section 25H-Re-employmentofretrenchedworkmen Where any workmen are retrenched, and the employerproposes to take into his employ anypersons, he shall, in such manner as may beprescribed,give an opportunity to the retrenched workmen who are citizens ofIndia to offer themselvesfor re-employment, and such retrenched workmen] who offer themselves for reemploymentshall havepreference over otherpersons."

7. A perusal of both these provisions shows that they are applicable in relation to a workman who is retrenched or is to be retrenched. This again takes us to Section 25F, since retrenchment is dealt with in the said provision. The question of retrenchment of a workman would arise only when he or she has served for a continuous period of one year with the LPA 72/2020 Page3of[5] employer. On a plain reading ofSections 25G and 25H,it is clear that they are not attracted in the case of a workman who has not worked for a year continuously, prior to the termination. If the submission of the Appellant were to be accepted that even in respect of a daily wager who may have served for a few days, the employer is bound to follow the provisions of Sections 25G and 25H, it would become practically impossible for any employer to carry on his industry. It would mean that the employer would be bound to give precedence in the matter ofemploymentto any person who may have served only for a few days and thereafter terminated. Correspondingly, such a workman would get a vested right to claim reemployment. This, certainly, is not the intent of the law. There are innumerable situations where - either the employer,or the workman may not wish to continue with the employment after a brief period of employment. This may be due to the work conditions, routines, temperament of the employer/employee etc. The right ofthe employer - in such situations, to discontinue the services and engage another workman cannot be interfered with. The law has put a limitation on the said right ofthe employer only when the employeghas worked for a continuous period ofone year.

8. Learned counselfor the Appellant has placed reliance onthejudgementof the Supreme Court in Rajinder Singh v. Punjab State Warehousing Corporation, AIR 2010 SC 116 and on paragraphs 11 and 13 whereofin particular. We have perused this decision. In our view,this decision is not attracted in the facts of the present case. As aforesaid, Section 25G is attracted in cases where workman has been retrenched or is entitled to be retrenched in terms ofSection 25F, which in turn means that he has served LPA 72/2020 Page4of[5] on a continuous basis for a period ofone year with an employer. That is not the case in hand.

9. For the aforesaid reasons, we do not find any merit in the present appeal and the same is dismissed.

FEBRUARY 07,2020 nk VIPIN SANGHI,J /} SANJEEV NARULA,J